[Cite as State v. Griffin, 2013-Ohio-416.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 11CA010128
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE PATRICK GRIFFIN COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellant CASE No. 10CR080110
DECISION AND JOURNAL ENTRY
Dated: February 11, 2013
WHITMORE, Judge.
{¶1} Defendant-Appellant, Patrick Griffin, appeals from his convictions in the Lorain
County Court of Common Pleas. This Court affirms.
I
{¶2} On the morning of November 26, 2009, the police discovered the body of Alberto
“Cookie” Gutierrez in a ditch on Pratt Road in Lorain County. The police soon identified Griffin
as a person of interest. Griffin lived across the hall from Cookie in the same apartment complex
and his cell phone number was the last number dialed on Cookie’s cell phone. Through further
investigation, the police discovered that Griffin lied about his whereabouts around the time of the
murder and that his cell phone and car were in the approximate vicinity of the murder scene near
Cookie’s estimated time of death. Forensic testing also later uncovered gunshot residue on a
glove in Griffin’s car as well as primer residue in his car and on the cuff of his jacket. 2
{¶3} A grand jury indicted Griffin on counts of aggravated murder, murder, felony
murder, felonious assault, and having weapons under disability. All of the counts also contained
an attendant firearm specification, and four of the counts contained repeat violent offender
specifications. Griffin filed a motion to suppress certain cell phone records that the State
obtained to triangulate the position of his cell phone during and around the time of the murder,
but the trial court denied his motion. Subsequently, the matter proceeded to a jury trial, and the
jury found Griffin guilty on all counts. The trial court then sentenced Griffin to life in prison.
{¶4} Griffin now appeals and raises five assignments of error for our review. For ease
of analysis, we rearrange the assignments of error.
II
Assignment of Error Number Three
THE TRIAL COURT ERRED IN DENYING MR. GRIFFIN’S MOTION TO SUPPRESS EVIDENCE SEIZED FROM HIS CELLULAR PHONE.
{¶5} In his third assignment of error, Griffin argues that the trial court erred by denying
his motion to suppress. We disagree.
{¶6} The Ohio Supreme Court has held that:
[a]ppellate review of a motion to suppress presents a mixed question of law and fact. When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. State v. Mills, 62 Ohio St.3d 357, 366 (1992). Consequently, an appellate court must accept the trial court’s findings of fact if they are supported by competent, credible evidence. State v. Fanning, 1 Ohio St.3d 19 (1982). Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard. State v. McNamara, 124 Ohio App.3d 706 (4th Dist.1997).
State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. Accord State v. Hobbs, 133 Ohio
St.3d 43, 2012-Ohio-3886, ¶ 6 (Burnside applied). Accordingly, this Court reviews the trial 3
court’s factual findings for competent, credible evidence and considers the court’s legal
conclusions de novo. State v. Conley, 9th Dist. No. 08CA009454, 2009-Ohio-910, ¶ 6, citing
Burnside at ¶ 8.
{¶7} Griffin sought to suppress certain information the State obtained about his cell
phone usage. Specifically, the State subpoenaed records from his cell phone provider that listed
all of the incoming and outgoing calls the phone had made and received around the time of the
murder. The records also contained information about the location of the cell phone at the time
those calls were made or received, as the provider recorded the particular cell phone tower and
side of the tower that the signal for any given call reached to complete the call. Griffin argues
that the trial court erred by denying his motion to suppress because the State was required to
obtain a warrant for his cell phone records. He relies upon State v. Smith, 124 Ohio St.3d 163,
2009-Ohio-6426.
{¶8} In Smith, the Ohio Supreme Court held that the Fourth Amendment prohibits the
warrantless search of data within a cell phone when the phone is seized incident to a lawful arrest
and no separate exigent circumstances exist. Smith at syllabus. There, officers searched the call
records and phone numbers on the defendant’s phone at some point after his arrest. The issue
before the court, therefore, was “whether the police may search data within an arrestee’s cell
phone without a warrant.” (Emphasis added.) Id. at ¶ 13.
{¶9} Unlike the officers in Smith, the officers in this case did not search within
Griffin’s cell phone to obtain the information about his call records. Instead, the officers
subpoenaed Griffin’s cell phone provider for that information. Smith is wholly distinguishable
and does not support Griffin’s argument that the police were required to secure a warrant before
subpoenaing his call records. See State v. Neely, 2d Dist. No. 24317, 2012-Ohio-212, ¶ 13-27 4
(warrant not required when the police subpoena cell phone records from defendant’s provider).
The trial court correctly concluded that Smith does not apply.
{¶10} The trial court determined that the State properly subpoenaed Griffin’s cell phone
records from his provider by way of 18 U.S.C. 2703. That statute “establishes a procedure that a
governmental entity is to follow in obtaining records pertaining to a subscriber to, or customer
of, an electronic communication service.” Id. at ¶ 15. Griffin does not discuss 18 U.S.C. 2703 in
his argument or suggest that the State failed to properly subpoena his records. His only
argument is that, per Smith, the State was required to obtain a warrant before it could search his
cell phone records. As previously discussed, Smith only applies to situations where the police
actually search within a defendant’s cell phone to obtain its call records. The police did not do
so here; they relied upon 18 U.S.C. 2703. Moreover, we need not analyze whether the State
properly subpoenaed Griffin’s records through 18 U.S.C. 2703, as Griffin has not addressed that
procedure on appeal. See App.R. 16(A)(7). The trial court did not err by denying Griffin’s
motion to suppress. As such, Griffin’s third assignment of error is overruled.
Assignment of Error Number Two
MR. GRIFFIN’S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶11} In his second assignment of error, Griffin argues that his convictions are against
the manifest weight of the evidence. We disagree.
{¶12} In determining whether a conviction is against the manifest weight of the
evidence an appellate court:
must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. 5
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A weight of the evidence challenge
indicates that a greater amount of credible evidence supports one side of the issue than supports
the other. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). Further, when reversing a
conviction on the basis that the conviction was against the manifest weight of the evidence, the
appellate court sits as the “thirteenth juror” and disagrees with the factfinder’s resolution of the
conflicting testimony. Id. Therefore, this Court’s “discretionary power to grant a new trial
should be exercised only in the exceptional case in which the evidence weighs heavily against
the conviction.” State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). See also Otten at
340.
{¶13} Griffin argues that the jury lost its way by convicting him because the case against
him was highly circumstantial and no one was able to place him with Cookie at the time the
murder occurred. Griffin does not challenge the credibility of any particular witness or piece of
evidence. Instead, he simply argues that the evidence weighs heavily against his conviction.
{¶14} Mariano Gutierrez, Cookie’s father, testified that Cookie agreed to live with him
in his apartment and help take care of him after he had to have his leg amputated. The apartment
was located across the hall from an apartment occupied by Griffin, his wife, and her two
children. Benvenita Dominguez, Cookie’s niece and Gutierrez’ granddaughter, testified that
Cookie sometimes socialized with Griffin. He also detailed Griffin’s car. John Dalton, a friend
of Cookie’s, testified that Cookie once introduced him to Griffin and described Griffin as “a
good dude” who allowed Cookie to borrow his car.
{¶15} Ronaye Ewing, Griffin’s wife, testified that the door to the apartment she and
Griffin shared “was kicked in” on November 25, 2009, the day before Thanksgiving. Although
Ewing did not notice anything missing from the apartment, she testified that their X-box had 6
been thrown to the floor and a cabinet was open. The same day, Griffin approached another
tenant regarding the break in. Aubry Brown testified that Griffin confronted her with a revolver
and demanded to know who had broken into his home. Brown testified that Griffin was angry
and pointed the gun at her during their conversation. She further testified that Griffin had the
handle of the gun wrapped in a clear bag as if he was trying to avoid leaving fingerprints on the
gun. According to Brown, when she told Griffin that she did not know anything about the break
in, he left her alone and said he would find out who was responsible.
{¶16} Dalton testified that he picked up Cookie at his apartment building around 7:30
p.m. the night of the 25th and brought Cookie to his house for a small party. Dominguez was in
the apartment building visiting her aunt and went to check on her grandfather after Cookie left.
Dominguez testified that she saw Griffin walking into his apartment as she left her aunt’s
apartment. She further testified that Griffin came back out into the hallway and asked her if
Cookie was there at the apartment. When Dominguez told Griffin that Cookie was not there, he
went back into his apartment and closed the door.
{¶17} Cookie remained with Dalton and his family for the rest of the evening.
Dominguez testified that she spoke with Cookie around 11:30 p.m. because he called to give her
a recipe. At some point close to 1:00 a.m. on Thanksgiving Day, Dalton testified, he dropped off
Cookie at his apartment. Nicole Booth, another tenant, was outside her apartment smoking at the
time and spoke with Cookie for a few minutes when he arrived. Booth testified that after Cookie
spoke with her she saw him walk to Griffin’s door, knock, and go inside. Booth never saw who
opened the door and returned to her apartment shortly thereafter. Gutierrez testified that he
stayed up until approximately 3:30 a.m. on Thanksgiving Day waiting for his son to arrive, but
Cookie never came back. 7
{¶18} At about 7:30 a.m. on Thanksgiving Day, Larry Eishen spotted a body lying in the
ditch alongside Pratt Road and called 911. The police found a wallet and cell phone on the body
and soon identified the body as Cookie’s. Dr. Paul Matus, the Lorain County Coroner at the time
of Cookie’s death, testified that Cookie died as a result of two gunshot wounds to his abdomen
and estimated that his approximate time of death was 2:30 a.m. Dr. Matus further testified that
one of the gunshots Cookie sustained had struck the zipper of his jacket and had knocked out
some of its teeth.
{¶19} Detective Anthony Kovacs testified that he examined Cookie’s cell phone and
determined that the last number he had dialed was a cell phone number that the police later
traced to Ewing and Griffin. Detective Kovacs drove to Cookie’s apartment building later in the
day to assist with the death notification. At that time, the police showed Dominguez pictures of
Ewing and Griffin, and she identified them as Cookie’s neighbors. She also gave the police a
description of their cars. Detective Kovacs found Griffin’s car, an old, maroon Cadillac, parked
in the back of the apartment building. Upon inspecting the car from the outside, Detective
Kovacs observed long grass on the driver’s side floorboard, which he believed was the same type
of grass that he had observed at the murder scene. The police ultimately towed Griffin’s car and
obtained a warrant before searching it. The search uncovered a glove on the driver’s seat, more
grass on the floor, and a very small piece of metal on the front passenger floor mat. The car was
also swabbed for gunshot residue.
{¶20} Detective Michael Lopez testified that he spoke with Griffin directly after the
police delivered the death notification to Cookie’s family. Detective Lopez testified that Griffin
hesitated when answering questions. Griffin claimed that the last time he saw Cookie was
sometime around 3:00 p.m. the day before (November 25th). He denied speaking with Cookie 8
on the phone at some point later and denied having left the apartment the previous night. Later
in the same conversation, however, Griffin changed his answer and indicated that Cookie had
called him at about 1:00 a.m. that morning (November 26th) and asked him to come out for a
drink. According to Detective Lopez, Griffin appeared very nervous when the police finally told
him that they had found Cookie and he was dead. Detective Lopez testified that he specifically
asked Griffin about his car and Griffin stated that he had not used the car to give Cookie a ride
and had not gone anywhere during the late evening hours of November 25th or the early morning
hours of November 26th.
{¶21} During their investigation, the police obtained Griffin’s cell phone records and
also conducted a search to determine whether any officer had run Griffin’s license plate number
through LEADS around the time of the murder. There was testimony that Ewing was listed as
the subscriber of three different cell phone lines, but Ewing clarified that she only used one of
the phones and Griffin and one of her children used the other two. Ewing confirmed that Griffin
used the cell phone number that appeared on Cookie’s cell phone as the last number dialed.
{¶22} Officer Christine Roberts testified that she performed a cell phone and cell tower
analysis of Griffin’s cell phone line using the cell phone records the police subpoenaed from the
phone’s provider. Officer Roberts explained that cell phones transmit a radio frequency and
connect to a particular cell tower each time an outgoing call is made or an incoming call is
received. In addition to logging all the calls made and received on a cell phone, Officer Roberts
testified, cell phone providers also code each call by the particular tower used to transmit the
call. She explained that cell phone towers all generally have three sides with one side oriented to
the north. When a cell phone signal connects to a tower, it only connects to one of the three
sides of the tower. The signal then remains connected to that side of the tower unless the cell 9
phone is moved or the call terminates. If the phone is moved outside the range of the tower itself
or a particular side of the tower, the phone’s signal will then connect to a different tower or
different side of the same tower. Officer Roberts testified that the provider of Griffin’s cell
phone included in the coding for each outgoing and incoming call the particular tower and side
of the tower the phone’s signal connected with at the point each call was initiated and at the point
each call was terminated. Using that information, Officer Roberts was able to plot any
movement of Griffin’s cell phone during the time in question and approximate its position.
Officer Roberts explained that she was only able to approximate position because the range of
any given tower varies. Accordingly, Officer Roberts could narrow the cell phone to being
located anywhere within the range of a particular side of a particular tower, but not precisely
where the phone was within that range.
{¶23} Officer Roberts testified that eight calls were logged on Griffin’s cell phone
between 12:09 a.m. and 12:51 a.m. on November 26, 2009 (Thanksgiving Day). Each of the
eight calls connected to Griffin’s home cell tower; the tower that Officer Roberts identified as
the one that would be used to connect any calls Griffin made or received while at his apartment.
Officer Roberts testified that another call at 1:14 a.m. connected to a different tower that was
southeast of Griffin’s home tower, meaning that someone had taken the phone southeast at that
point. The phone continued to move south and, at 1:47 a.m., connected to a tower in Wellington
whose range covered the area of Pratt Road where Cookie’s body was found. Subsequently,
another call at 2:15 a.m. showed that the cell phone was moving back north. The phone
continued to travel north, connecting with a tower north of the murder scene at 2:25 a.m. and
different sides of another tower at 2:31 a.m., 2:38 a.m., and 2:48 a.m. Finally, Officer Roberts
testified, the phone’s signal connected to the home tower again at 3:35 a.m. She further testified 10
that the phone traveled again the following morning, connecting with towers headed southeast of
Wellington before eventually returning to Griffin’s home tower.
{¶24} Ewing testified that she remained at the apartment the night of November 25th
through the following morning. She testified that she slept on the apartment’s couch and faded
in and out as the night went on because she had taken Vicodin to cope with pain she felt from a
recent surgery. According to Ewing, Griffin kept walking in and out of the apartment while she
slept. Griffin was not there, however, at one point when Ewing awoke, so she called his cell
phone. Ewing agreed based on the cell phone records that she had called Griffin at 1:14 a.m. on
November 26th. When she was unable to get a hold of Griffin, Ewing went back to sleep. She
woke up at some point later and discovered that Griffin was home. Ewing also testified that later
that Thanksgiving morning, Griffin traveled south near Wellington to pick up her daughter from
a relative’s house.
{¶25} Officer William Flesch of the City of Oberlin Police Department testified that he
was patrolling Oberlin Road around 1:30 a.m. on November 26th. He testified that he decided to
run the license plate of a dark colored, late model Cadillac through LEADS when he observed it
traveling down Oberlin Road. Officer Flesch followed the car for a short period, but never
stopped it because he did not detect any infractions. He never saw the driver, but remembered
watching the car turn eastbound onto Parsons Road before he drove away. Officer Flesch could
not recall the license plate number of the car, but Officer Russell Scarbrough, a supervisor in the
Communications Center of the Lorain County Sheriff’s Office, confirmed the LEADS check that
Officer Flesch had performed. The check took place at 1:31 a.m. on November 26th and the
checked plate number matched the plate number of Griffin’s Cadillac. 11
{¶26} Several members of the Bureau of Criminal Identification and Investigation
(“BCI”) tested various items that were taken from Griffin’s car and his apartment. Christopher
Smith, a forensic scientist in the DNA and Forensic Biology Section, testified that he performed
a DNA analysis on the glove taken from Griffin’s car. He confirmed that DNA he found inside
the glove was consistent with Griffin’s DNA. Smith also tested a jacket taken from Griffin’s
apartment and confirmed that the DNA profile he obtained from the jacket was consistent with
Griffin’s. Martin Lewis, a forensic scientist in the trace evidence section, testified that he
performed gunshot residue testing on the glove, the jacket, and several swabs taken from
Griffin’s car. Lewis testified that he found particles highly indicative of gunshot residue on the
glove. He further found particles highly indicative of gunshot primer residue on the left cuff of
Griffin’s jacket, the steering wheel of his car, and the back of the front passenger seat of his car.
{¶27} In addition to performing gunshot residue testing, Lewis was asked to examine
the very small piece of metal that Detective Kovacs discovered on the front passenger floor mat
of Griffin’s car. Specifically, Lewis compared the piece of metal to the zipper teeth of the jacket
Cookie was wearing when he was shot. As previously discussed, the coroner observed that one
of the gunshots inflicted upon Cookie struck the zipper portion of his jacket and dislodged some
of its teeth. Lewis opined that the small piece of metal he examined was the same color, shape,
and size as the zipper teeth on Cookie’s jacket. He also performed an infrared analysis and
determined that both the small piece of metal and the zipper teeth exhibited the same chemical
properties.
{¶28} The police never recovered the firearm used to shoot Cookie. They also never
found any bullet casings at the scene. Michael Roberts, a forensic scientist from BCI’s Firearms
Department, noted, however, that unlike the bullet casings ejected from a semi-automatic 12
weapon, bullet casings will remain in a revolver until manually removed from its chambers. As
previously discussed, one of the tenants of Griffin’s apartment testified that he had pointed a
revolver at her the day before Cookie’s murder, when questioning her about a break in.
{¶29} The only witness presented by the defense was Amanda Varney, a resident of
Jones Road in Wellington. Varney testified that Jones Road is located within 1.5 miles of Pratt
Road, the road on which Cookie’s body was found. Varney testified that she was routinely
awake during the night for short periods of time around Thanksgiving 2009 because she was
pregnant and was not sleeping well. According to Varney, she distinctly heard three gunshots
fired at about 2:15 a.m. on Thanksgiving Day (November 26th). At that time, Griffin’s cell
phone records showed that his cell phone was no longer in the area. Varney admitted, however,
that it was quite common to hear gunshots in the area. Larry Eishan, the man who discovered
Cookie’s body on Pratt Road, also testified that there were frequent gunshots in the rural area.
{¶30} Having reviewed the entire record, we cannot conclude that Griffin’s convictions
are against the manifest weight of the evidence. Griffin was specifically looking for Cookie on
the night of November 25th; the same night that he was carrying a revolver around questioning
tenants about the break in at his apartment. Griffin’s cell phone number was the last one dialed
on Cookie’s cell phone, and a resident of the apartment building saw Cookie go into Griffin’s
apartment just after 1:00 a.m. on the morning of November 26th. Griffin lied to the police about
his whereabouts around the time Cookie was murdered. Although Griffin denied having gone
anywhere, he was not present at the apartment when Ewing awoke. Moreover, his Cadillac was
spotted at 1:30 a.m. not far from the murder scene, and his cell phone was within the range of the
cell tower encompassing the murder scene at 1:47 a.m. Later the same morning, the cell phone 13
again traveled south near Wellington when Griffin went to pick up Ewing’s daughter. Ewing
confirmed that the cell phone number at issue was Griffin’s.
{¶31} Gunshot residue testing uncovered gunshot residue on Griffin’s glove as well as
primer residue on the cuff of his jacket and the inside of his car. The car also contained pieces of
grass that resembled the loose grass at the murder scene and a very small piece of metal that was
the same color, size, and shape and had the same chemical composition as the zipper teeth from
Cookie’s jacket. Although the murder weapon was never found, the use of a revolver would
have explained the lack of bullet casings at the crime scene. Moreover, the police never found
the revolver that Griffin pointed at Aubry Brown on November 25th.
{¶32} Although the State’s case against Griffin was circumstantial in nature,
circumstantial evidence “inherently possess[es] the same probative value” as direct evidence.
State v. Jones, 9th Dist. No. 25986, 2012-Ohio-4256, ¶ 9, quoting State v. Jenks, 61 Ohio St.3d
259 (1991), paragraph one of the syllabus. Based on our review of the record, this is not the
exceptional case where the trier of fact lost its way by convicting Griffin. See Thompkins, 78
Ohio St.3d at 387. Therefore, his second assignment of error is overruled.
Assignment of Error Number One
THE PROSECUTOR COMMITTED MISCONDUCT WHEN MR. GRIFFIN’S EXERCISE OF HIS CONSTITUTIONAL RIGHTS WAS USED AGAINST HIM AT TRIAL.
{¶33} In his first assignment of error, Griffin argues that he was denied his right to a fair
trial because the prosecutor engaged in misconduct throughout the trial. Specifically, he argues
that he was penalized for asserting his constitutional rights because the prosecutor repeatedly
referenced his refusal to submit to gunshot residue testing and his desire to consult with counsel
after the police contacted him. 14
{¶34} In deciding whether a prosecutor’s conduct rises to the level of prosecutorial
misconduct, a court determines if the prosecutor’s actions were improper, and, if so, whether the
defendant’s substantial rights were actually prejudiced. State v. Smith, 14 Ohio St.3d 13, 14
(1984). “[A] judgment may only be reversed for prosecutorial misconduct when the improper
conduct deprives the defendant of a fair trial.” State v. Knight, 9th Dist. No. 03CA008239, 2004-
Ohio-1227, ¶ 6, citing State v. Carter, 72 Ohio St.3d 545, 557 (1995). The defendant must show
that, but for the prosecutor’s misconduct, the jury would not have convicted him. State v. Lollis,
9th Dist. No. 24826, 2010-Ohio-4457, ¶ 24. “The touchstone of the analysis ‘is the fairness of
the trial, not the culpability of the prosecutor.’” State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-
6266, ¶ 140, quoting Smith v. Phillips, 455 U.S. 209, 219 (1982).
{¶35} The prosecutor noted in both opening and closing that Griffin had refused to
allow the police to swab his hands during their investigation. Griffin’s refusal also came to light
during the testimony of several witnesses, some of whom stated that the reason Griffin refused
was that he wanted to consult with an attorney. Additionally, the prosecutor told the jury during
opening statements that Griffin had called a lawyer before the police ever contacted him. The
statement proved untrue, as the prosecutor later determined that the lead officer’s report
contained a mistake. Subsequently, the prosecutor corrected the record during the testimony of
the lead officer, verifying that Griffin only contacted a lawyer after the police contacted him.
{¶36} Griffin argues that it was improper for the prosecutor to draw attention to either
his refusal to allow the police to swab his hands or to his desire to consult with an attorney at any
point in time. Because he had a constitutional right to refuse a swab and to consult with a
lawyer, Griffin argues, it was inappropriate for the prosecutor to comment on the fact that he had
asserted his rights. See State v. Wiles, 59 Ohio St.3d 71, 88 (1991). Griffin avers that the 15
prosecutor’s actions amounted to misconduct because the repeated references to his having
asserted his rights created an inference that he had something to hide or that he would not have
asserted his rights if he were innocent.
{¶37} The record reflects that Griffin did not object to any of the statements by the
prosecutor that he now argues were improper. He also never otherwise brought the issue to the
attention of the trial court (e.g., by seeking a mistrial). “[W]hen the defendant fails to object to []
purported acts of prosecutorial misconduct, he limits appellate review to that of plain error.”
State v. Veal, 9th Dist. No. 26005, 2012-Ohio-3555, ¶ 18. Yet, this Court has refused to review a
prosecutorial misconduct argument for plain error sua sponte when an appellant has failed to do
so. See, e.g., State v. Hicks, 9th Dist. No. 24708, 2011-Ohio-2769, ¶28-31, State v. Ha, 9th Dist.
No. 07CA0089-M, 2009-Ohio-1134, ¶ 61-63. Griffin has not argued plain error on appeal. As
detailed in Griffin’s manifest weight assignment of error, the State amassed a great deal of
evidence from which the jury concluded that Griffin was guilty. Griffin does not address any of
the other evidence in the case or explain why, in the absence of the prosecutor’s alleged
misconduct, the jury would not have convicted him. See Lollis, 2010-Ohio-4457, at ¶ 24. See
also Veal at ¶ 18 (decision will not be reversed for plain error “unless the defendant has
established that the outcome of the trial clearly would have been different but for the alleged
error”). As this Court has repeatedly held, “[i]f an argument exists that can support [an]
assignment of error, it is not this [C]ourt’s duty to root it out.” Cardone v. Cardone, 9th Dist.
No. 18349, 1998 WL 224934, *8 (May 6, 1998). Griffin’s first assignment of error is overruled.
Assignment of Error Number Four
THE TRIAL COURT ERRED IN FAILING TO PROPERLY INSTRUCT THE JURORS REGARDING THE TESTIMONY OF CO-DEFENDANT RONAYE EWING. 16
{¶38} In his fourth assignment of error, Griffin argues that the trial court failed to
properly instruct the jury. Specifically, he argues that the court should have given the jury an
accomplice instruction with regard to the testimony of Ronaye Ewing.
{¶39} The record reflects that Griffin never objected to the trial court’s jury instruction
or asked the court to instruct the jury on accomplice testimony. When a defendant does not
object to a trial court’s failure to give a certain jury instruction, we review the defendant’s
challenge to that alleged error on appeal for plain error. See State v. Garner, 9th Dist. No.
25771, 2012-Ohio-1439, ¶ 20-21. In determining whether the trial court committed plain error
by failing to give the jury an accomplice instruction under R.C. 2923.03, this Court generally
examines several specific factors. See State v. Simpson, 9th Dist. No. 25363, 2011-Ohio-2771, ¶
19. Here, however, Griffin has not argued plain error. See State v. Gray, 9th Dist. No.
08CA0057, 2009-Ohio-3165, ¶ 7 (“[T]his Court will not undertake a plain error analysis sua
sponte when the appellant has failed to assert such an argument in his brief.”). He also has not
explained how Ewing was, in fact, an accomplice.
{¶40} Generally, “[a]t minimum, an accomplice must be someone who has been
indicted for the crime of complicity.” State v. Smith, 9th Dist. No. 25650, 2012-Ohio-794, ¶ 22.
Otherwise, an accomplice instruction may become necessary only in certain “rare circumstances”
where a person might have been an accomplice, but was never indicted, such as a situation in
which he or she received immunity in exchange for his or her testimony. Id. Ewing testified that
she was originally charged with obstructing justice, a third-degree felony, but that the State
reduced her charge to obstructing official business, a second-degree misdemeanor, in exchange
for a guilty plea and her testimony. Thus, Ewing was indicted, but she was never charged with
complicity. She also repeatedly informed the jury that her charges were reduced as a result of 17
her plea agreement. Apart from failing to argue plain error, Griffin has not shown that Ewing
was actually an accomplice or that her status was such that this was one of the “rare
circumstances” where an accomplice instruction was warranted. See id. This Court will not
undertake an analysis on Griffin’s behalf when he has not done so. See Gray at ¶ 7. Griffin’s
fourth assignment of error is overruled.
Assignment of Error Number Five
THE TRIAL COUNSEL WAS INEFFECTIVE WHERE COUNSEL FAILED TO BIFURCATE THE SINGLE COUNT OF HAVING A WEAPON UNDER DISABILITY AND INSTEAD ALLOWED THE JURY TO LEARN OF APPELLANT’S PRIOR CRIMINAL HISTORY.
{¶41} In his fifth assignment of error, Griffin argues that he received ineffective
assistance of trial counsel because his counsel never sought to bifurcate his count of having a
weapon under disability from his remaining counts for purposes of trial. We disagree.
{¶42} To prove an ineffective assistance claim, Griffin must show two things: (1) that
counsel’s performance was deficient to the extent that “counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) that “the deficient
performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). To
demonstrate prejudice, Griffin must prove that “there exists a reasonable probability that, were it
not for counsel’s errors, the result of the trial would have been different.” State v. Bradley, 42
Ohio St.3d 136 (1989), paragraph three of the syllabus. “An error by counsel, even if
professionally unreasonable, does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment.” Strickland at 691. Furthermore, this
Court need not address both Strickland prongs if an appellant fails to prove either one. State v.
Ray, 9th Dist. No. 22459, 2005-Ohio-4941, ¶ 10. 18
{¶43} Before the jury was seated, Griffin’s attorney asked the court to order the clerk to
temporarily seal online access to Griffin’s record to prevent anyone from accessing information
about Griffin’s other convictions or cases during the trial. His counsel also stipulated to the prior
conviction relevant to the having weapons under disability charge to prevent the State from
calling the victim from the prior conviction in to testify. Nevertheless, Griffin argues that his
attorney was ineffective because he did not seek to sever his weapons charge from the trial on his
remaining charges. Griffin argues that it was inherently prejudicial for the jury to learn that he
had a prior conviction.
{¶44} Griffin has not shown that his counsel’s performance was deficient or that there is
a reasonable probability that the outcome of his trial would have been different, but for his
counsel’s performance. “[A]n attorney’s decisions not to file certain pretrial motions [,including
a motion to sever charges for separate trials,] are ‘debatable trial tactics [that] generally do not
constitute a deprivation of effective counsel.’” State v. Aaron, 9th Dist. No. 21434, 2003-Ohio-
5159, ¶ 23, quoting State v. Phillips, 74 Ohio St.3d 72, 85 (1995). Moreover, Griffin fails to
explain how, in light of all of the other evidence introduced at trial, the result of his trial would
have been any different had his weapons under disability count been tried separately. The fact
that Griffin’s attorney did not seek to bifurcate his weapons under disability count from the
remaining counts does not constitute per se ineffective assistance of counsel. Griffin has not
satisfied either of the Strickland prongs. Consequently, his fifth assignment of error is overruled.
III
{¶45} Griffin’s assignments of error are overruled. The judgment of the Lorain County
Court of Common Pleas is affirmed.
Judgment affirmed. 19
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
BETH WHITMORE FOR THE COURT
MOORE, P. J. CARR, J. CONCUR.
APPEARANCES:
KREIG J. BRUSNAHAN, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting Attorney, for Appellee.